Literature
Brehm Roland, Berner Kommentar, Art. 41-61 OR. Obligationenrecht, die Entstehung durch unerlaubte Handlung, Bern 2021; Christen Rita, Gutachten bei Bergunfällen, HAVE 2015 p. 268 ff.; Fellmann Walter, Berner Kommentar, Der einfache Auftrag, Art. 394-406 OR, Bern 1992; Gonseth, Andreas, Trailbünden, in: FITforLife 4-5/20, pp. 70-71; Honsell Heinrich, Schweizerisches Haftpflichtrecht, 4th edition, Zurich 2013; Hungerbühler Francine, Klettern (inkl. Klettersteig), in: Schneuwly Anne Mirjam/Müller Rahel (eds.), Bergsportkommentar; Hürlimann-Kaup Bettina, Die privatrechtliche Gefälligkeit und ihre Rechtsfolgen, Diss. Freiburg 1999; Kessler Martin a., in: Widmer Lüchinger Corinne/Oser David, Basler Kommentar, Obligationenrecht I, Basel 2020; Koch Patrick, Skitouren und Variantenfahren (Teil 1), in: Schneuwly Anne Mirjam/Müller Rahel (eds.), Bergsportkommentar; Kuonen Stéphanie, Alpinisme, in: Schneuwly Anne Mirjam/Müller Rahel (eds.), Bergsportkommentar; Müller Christoph, Berner Kommentar, Art. 1-18 OR mit allgemeiner Einleitung in das Schweizerische Obligationenrecht, Bern 2018 (cited BK OR-Müller); Müller Franz/Sidiropoulos Alexia, Das Verfahren bei Bergunfällen aus anwaltlicher Sicht, in: Schneuwly Anne Mirjam/Müller Rahel (eds.), Bergsportkommentar; Müller Rahel, Haftungsfragen am Berg, Diss. Bern 2016 (cited Müller, Diss.); the same, Bergsportrecht: Einführung und Grundlagen, in: Schneuwly Anne Mirjam/Müller Rahel (eds.), Bergsportkommentar (cited: Müller, Bergsportkommentar), Trechsel Stefan/Fateh-Moghadam Bijan, in: Trechsel Stefan/Pieth Mark (eds.), Schweizerisches Strafgesetzbuch, Praxiskommentar, 4th ed, Zurich/St. Gallen 2021; Vuille Miro, Wandern, in: Schneuwly Anne Mirjam/Müller Rahel (eds.), Bergsportkommentar; Widmer Lüchinger Corinne/Wiegand Wolfgang, in: Widmer Lüchinger Corinne/Oser David, Basler Kommentar, Obligationenrecht I, Basel 2020.
I. General information
A. Introduction
The popularity of trail running has been on the rise since the mid-1990s and the World Athletics Association now estimates the number of trail runners worldwide at around 20 million. The boom that trail running is also experiencing in Europe was boosted not least by the first staging of the UTMB (Ultra-Trail du Mont-Blanc) trail running competition in 2003, which has since achieved cult status. According to World Athletics, trail running is now one of the fastest growing sports in the world and was recognized as an official athletics discipline in 2015. But what exactly characterizes this sport, when do we talk about trail running and no longer simply about running and how does the sport fit into the various mountain sports?
The Cambridge Dictionary defines a trail as "a path through a countryside, mountain or forest area, often made or used for a particular purpose". The discipline of trail running therefore refers to running away from asphalt roads and paved paths. The International Trail Running Association (ITRA), an organization founded in 2013, is responsible for the development of trail running as a partner of World Athletics. The ITRA defines trail running as a sport in the midst of nature and as endurance running in natural, varied terrain that often has significant inclines and declines. According to World Athletics, the umbrella organization for all national athletics federations, of which the Swiss athletics federation Swiss Athletics is a member, trail running takes place on various types of natural terrain. The graubünden Trailrun association, which was officially founded on March 7, 2024 and developed from the "graubündenTRAILRUN" project initiated by the canton of Graubünden in 2017, with which the canton wanted to strategically establish the framework conditions for trail running at cantonal level and promote the development of a specific trail running infrastructure(Gonseth, p. 70 f.), describes trail running succinctly as "all types of running in a natural environment with a minimal amount of paved ground"(https://graubuendentrailrun.ch/definition). To qualify a competition as a trail competition, the ITRA has set a maximum possible proportion of asphalt roads of 20 percent.
Trail running therefore differs from running on asphalt roads, on paved paths or on the track of a sports stadium. Trail running takes place on different types of natural paths in different environments - on gravel, forest and meadow paths through forests, parks or along lakeshores, on rooty, rocky and bumpy trails in alpine terrain, on paths through sandy deserts, snow or wide plains. Not every trail run takes trail runners into the mountains - but trail running can be categorized as a mountain sport, as there is no generally binding definition of mountain or alpine sports (see Müller, Bergsportkommentar, para. 2). Compared to hikers, trail runners are faster and generally cover greater distances, running the part of the route that they can run. The trails can be assigned to different categories of paths and have different levels of difficulty on the mountain and alpine hiking scale of the Swiss Alpine Club SAC (see Müller, Bergsportkommentar, para. 5 and Vuille, para. 7-9). Trail running can therefore, depending on the surface, the altitude, the positive and negative difference in altitude, the length of the trail and, finally, the speed of the trail runners, be very differently challenging on the one hand and, on the other, involve different risks and dangers. These risks and dangers exist both for the trail runners themselves and for any accompanying persons, with or without commercial orientation.
If an accident occurs while trail running, the facts of the case must be legally assessed. Liability and insurance issues and, if necessary, questions of criminal liability must be clarified.
B. Delimitations
1. differentiation from other mountain sports
Trail running differs from other mountain sports in some respects, but there are also many similarities. Hiking and mountaineering are obviously the most similar.
a. Hiking
Hiking (see Vuille's article for a comprehensive explanation of hiking) is the mountain sport with which trail running has the most in common. Compared to trail runners, hikers are generally slower and more leisurely, as it is a non-competitive sporting discipline. What both mountain sports have in common is that no special equipment is usually required and a hiking rucksack and, if necessary, hiking poles or a lighter trail running vest and, if necessary, lighter trail running poles are sufficient for a day trip into the mountains. Trail runners also hike sections of their runs, but try to cover the distance on foot where the paths allow.
b. Mountaineering
In contrast to trail running, mountaineering (see Kuonen's article for a comprehensive explanation of mountaineering) often requires technical skills such as climbing and the use of safety equipment such as climbing harnesses and ropes. Trail running in the mountains does not normally involve any more technically demanding climbing passages beyond scrambling, but concentrates on running on trails in mountainous terrain.
2. demarcations in trail running
Even within trail running, distinctions can be made between different forms and disciplines.
a. Mountain run
There is no standard definition of a mountain run. Mountain running is also a run in mountainous terrain and runners run on trails, among other things, although longer sections on asphalt are not uncommon. Compared to trail running, mountain running focuses more on the ascent up a hill or mountain and usually on the goal of reaching a summit. Trail running, on the other hand, is usually a mixture of ascents and descents on paths with varied terrain. You may not have heard or read about trail running for so long in Switzerland, but mountain running has been around for a long time. Sierre-Zinal, the oldest mountain run in Switzerland, which leads from the Valais town of Sierre at an altitude of 533 meters with counter ascents to the mountain village of Zinal at an altitude of 1675 meters, was held for the first time in 1974. And the Jungfrau Marathon in the Bernese Oberland is probably one of the most famous mountain runs in the world.
b. Skyrunning
Skyrunning is a technically demanding form of trail running in alpine terrain. The International Skyrunning Federation, which organizes the official skyrunning events, defines skyrunning as a run at an altitude of over 2000 metres that does not exceed the 2nd degree of difficulty on the UIAA climbing scale and contains passages with a gradient of over 30 percent (see https://www.skyrunning.com/about-skyrunning and https://www.berg-freunde.ch/blog/was-ist-skyrunning/).
c. Ultratrail running
More and more trail runners are seeking the adventure of ultra trail running. This begins where the marathon distance of 42,195 kilometers ends. The sky's the limit - the Swiss Peaks Trail is an ultra trail in which trail runners cross the entire canton of Valais over a distance of 660 kilometers, covering over 49,000 meters in altitude. This makes the race the longest ultra trail in Europe(https://www.runnersworld.de/laufkalender/swiss-peaks-trail).
3. delimitation by the degree of difficulty and the equipment
Trail runners are looking for adventure and this thirst for adventure does not seem to be so easy to satisfy. Trail competitions offer longer and longer distances or more technically demanding routes. However, runners are also looking for personal challenges and pursuing FKT records, for example, trying to beat the "Fastest Known Time" for running certain and possibly extremely long distances or climbing mountain peaks. Light luggage is essential and equipment should be kept to a minimum. This blurs the boundaries between trail running, mountaineering and climbing and the demands and therefore the risks and dangers to which trail runners and, if necessary, their companions are exposed differ.
In addition to the level of difficulty of the trail, the equipment also offers a way of differentiating and classifying it as a mountain sport. Classic trail running equipment consists of trail running shoes with a good profile, a trail running rucksack, trail running poles if necessary and, depending on the terrain, spikes, an ice axe and a helmet. As a rule, it is no longer trail running if additional mountaineering or climbing equipment is required, whereby the need for safety equipment is also subject to subjective assessment.
C. Legal basis
Trail runners generally use a wide variety of footpaths and hiking trails. For information on the legal basis of these paths in the Federal Constitution (FC), the Federal Act on Footpaths and Hiking Trails (FWG), the Road Traffic Act (SVG), the Signalization Ordinance (SVV) and the VSS standard SN 640 829a, please refer to the article on hiking (see the article by Vuille). The legally binding standard SN 640 829a on the signaling of non-motorized traffic explains in para. 7.7 that the hiking trail network consists of all interconnected hiking, mountain and alpine hiking trails. These three categories of paths are defined in the standard and the requirements for users of the paths are specified (see also Vuille, para. 7). The SAC divides the trails in its mountain and alpine hiking scale into these three categories, but distinguishes between the six levels of difficulty T1 to T6. Although the scale does not have the character of a standard, it can have a legal effect, as the levels of difficulty defined therein are used for demarcation in various provisions of the Risk Activities Ordinance (see Müller, Diss., para. 13; RiskV Annex 2).
In addition to the general legal basis, the Federal Act on Mountain Guiding and the Offering of Other Risk Activities(RiskG) and the Risk Activities Ordinance(RiskV), which regulates the licensing, certification and insurance requirements for providers of so-called risk activities and defines duties of care, are also relevant in relation to trail running (see Müller, Bergsportkommentar, para. 9 ff. on risk activity legislation).
II Private law
Trail running is practiced on very different paths in the great outdoors. The dangers that otherwise arise when hiking or mountaineering are naturally exacerbated when practiced "on the run". In the event of an accident, the question arises as to whether a third party can be held liable for the accident. For the general bases of liability in mountain sports accidents and the existing bases of liability (fault-based liability, causal liability, contractual liability and fidelity liability), please refer to the general section and the literature mentioned there (see Müller, Bergsportkommentar, para. 36 ff.). The following section deals exclusively with specific issues and constellations in connection with trail running. There is also an overview of constellations relating to clubs.
In trail running competitions, the participating runners are also regularly photographed and the images are used for social media campaigns or other purposes, which raises questions of personal rights (see para. 42).
A. Contractual liability of the professional trail running guide
1. applicability of the Risk Activities Act
In contrast to the sports of mountaineering (mountain guide), snow sports (snow sports instructor) or hiking (hiking guide), the profession of trail running guide is not explicitly mentioned in the RiskG (see Müller, Bergsportkommentar, para. 8 ff. for detailed explanations on risk activity legislation). Trail running is also not explicitly mentioned in the Risk Activities Ordinance. Due to the description of the scope of application in Art. 1 Para. 1 RiskG (it applies to commercially offered risk activities in mountainous or rocky terrain and in stream or river areas where there is a risk of falling or slipping or an increased risk due to swelling masses of water, falling rocks and ice or avalanches and where special knowledge or special safety precautions are required to undertake the activity), there is no doubt, however, that the law is in principle also applicable without further ado to an activity as a guide on a trail running tour if the requirements of this general clause are met. Trail runners do nothing more than hikers or mountaineers, they simply move much faster and generally carry much less equipment with them.
It follows from Art. 3 lit. a and b RiskV that a permit is required for the commercial offering of guided trail running tours that are classified as high-altitude tours or alpine hikes with a difficulty level of T4 or higher. If the planned route does not reach this level of difficulty and remains in the T1-T3 range, no permit is required. From difficulty level T4, the guide must have at least a qualification as a hiking guide with a federal certificate and appropriate additional training (Art. 8 Para. 4 RiskV) in order to obtain a permit. Hikes with a higher classification (T5 and T6) and alpine tours may only be offered by mountain guides with a federal certificate (Art. 4 Para. 1 RiskV). Particularly as trails with a difficulty level of over T4 and alpine tours can generally no longer be undertaken as trail runs, especially as carrying technical equipment becomes essential, it can be assumed that there are generally no legally prescribed requirements for commercial providers of trail runs and therefore there is generally no need for a permit.
2. contractual relationship
As a rule, the contractual relationship exists directly between the guide and the guest. However, it is also conceivable that the contractual relationship exists between the guest and a third party who acts as an organizer and is itself in a contractual relationship (employment contract or assignment) with a trail running guide. As of today, there are no such organizers with several guides under contract. However, various sporting goods retailers or manufacturers organize taster events or equipment tests, some of which are also led by external guides (see the Backdoor Shop in Grindelwald as an example).
The contractual relationship between guide and guest is to be qualified as an order in accordance with Art. 394 OR. The agent is liable to the client for the faithful and diligent execution of the business entrusted to it (Art. 398 para. 2 OR; BK OR-Fellmann, Art. 394 N 234 ff. and Art. 398 N 16 ff.). The contractually owed service is specifically the flawless planning and safe execution of the agreed tour, taking into account the external circumstances and the individual abilities of the guest. Under certain circumstances, it may also be necessary to change the route or even exclude an individual guest from the group if the guest is clearly overtaxed or has inadequate equipment (shoes, safety equipment carried, water, etc.) in order to fulfill the contractual obligations towards the other participants.
3. liability and duty of care of the professional trail running guide
A contractual relationship is characterized by the fact that the agent is required to act diligently as described above (see margin no. 21). If the agent breaches this duty and the client suffers damage as a result, he or she will be held liable pursuant to Art. 97 i.V.m. Art. 398 OR. For the degree of care, the law refers in Art. 398 para. 1 CO refers to the level of care to be exercised by the employee in the employment relationship (Art. 321a para. 1 and Art. 321e para. 2 CO)
At this point, an important difference in the assessment of negligence in the sense of disregarding the standard of care to be observed should be pointed out. This differs in contractual and non-contractual relationships. In the context of non-contractual, tortious liability, the breach of the duty of care is assessed on the basis of the individual and subjective circumstances and knowledge of the (potentially) liable person (BK OR-Brehm, Art. 41 N 196 with reference to BGE 129 IV 119/121). In the case of contractual liability, on the other hand, the person held liable cannot rely on their own, possibly inadequate, level of knowledge and training. Rather, an objective concept of fault and standard of care applies here. The decisive factor is therefore what is customary and to be expected of an average debtor in the market in which he acts(BSK OR I-Lüchinger/Wiegang, Art. 99 N 9 with reference to BGE 115 II 62/64).
It should be noted that trail running, like all sporting activities in nature, involves various inherent risks that cannot or can hardly be controlled by the client. These include, in particular, unforeseeable rockfalls, path collapses or tripping and falling. In this context, it must be taken into account that walking on hiking trails already involves considerable risks at normal speed (see the case studies in Vuille, para. 68 ff. and 73 ff.), whereby these are naturally greatly increased by the higher speed of trail running and the much more sparse equipment used. This risk can be partially shifted to a trained guide, but a certain residual risk inherent in the mountain always remains with the client(Müller, Diss., para. 35 and 299).
As explained above under para. 17 ff., the activity of trail running guide is not explicitly listed and regulated in the legislation(RiskG and RiskV). At present, there is also no literature or case law in this regard. However, as far as the duties of care to be observed by a trail running guide are concerned, it can be assumed without further ado that in a specific liability case the duties of care listed in Art. 2 para. 1 and 2 RiskG would also be applied analogously to the guide by the court (see on the duties of care according to RiskG and RiskV: Müller, Bergsportkommentar, para. 17 ff.).
The non-exhaustive list of duties in Art. 2 Para. 2 RiskG includes the duty of the guide to inform the customer of particular dangers (a) and to check whether he/she has sufficient fitness to carry out the chosen activity (b). The guide must ensure that the equipment is free of defects and that installations (e.g. metal ropes in particularly exposed places) are in good condition (lit. c). In addition, he/she must check the suitability of the weather and snow conditions for the intended undertaking (lit. d). He/she must ensure that the personnel involved are sufficiently qualified (lit. e) and that there is sufficient personnel for the level of difficulty and danger (i.e. an appropriate ratio of participants to guides; lit. f). Finally, consideration must also be given to the environment and, in particular, the habitats of animals and plants must be protected, although this is unlikely to be relevant under liability law (lit. g).
The extent of the duties of a trail running guide depends on the specific circumstances. The experience and athletic ability of the participants as well as the expected technical difficulties and physical demands of the planned tour are particularly relevant. However, in view of the fact that there is no officially recognized training for trail running guides (such as mountain guides or hiking guides), the standard of care is likely to be less far-reaching overall. This applies in any case in comparison to mountain guides, who have to complete very comprehensive training including the acquisition of longer professional experience (see https://sbv-asgm.ch/bergfue hrer-bergfuehrerin/). However, due to the formalized training (see https://sbv-asgm.ch/wanderle iter-wanderleiterin/), a person with a federal hiking guide certificate must also be considered to have a slightly lower standard. With increasing popularity and professionalization, however, it is quite conceivable that guides of trail running tours will soon have to (at least) apply the same standard of care as hiking guides.
B. Non-contractual liability / liability in tort pursuant to Art. 41 CO
In the absence of a contractual relationship with the person causing the damage (and alternatively if such a relationship exists), the injured party can assert claims against the person causing the damage on the basis of tort liability in accordance with Art. 41 OR against the person causing the damage. Factors that may give rise to a duty of care and thus liability include, for example, the courtesy (BK OR-Müller, Art. 41 N 274; Honsell, § 9 N 38; Hürlimann-Kaup, p. 6 ff.) or de facto leadership (see Federal Supreme Court case law from criminal law: BGE 91 IV 117, BGE 98 IV 168 and BGE 100 IV 210 as well as para. 39 below) of the person in charge.
The duties of care to be observed by the guide in the context of a favor or as a de facto guide (see on the concept of a de facto guide Koch, para. 23 et seq.) are based on the specific abilities and requirements of the person in question (subjective standard of care), in contrast to a professional guide (objective standard of care) (see para. 23 and the literature references there for the distinction).
It should be noted here that most members of trail running clubs who lead weekly training sessions or tours in the mountains, for example, have no specific training in this area and the clubs usually do not have a specific training organization with trained coaches. The guides' wealth of experience often differs little, if at all, from that of the other participants. The corresponding function is usually limited to a mere organizational activity, namely setting the date and route. An effective leadership function with responsibility for the group is generally not exercised. As a rule, therefore, the duties of care to be observed are likely to be considerably less extensive than those of professional and trained guides who offer this activity for a fee and on a contractual basis.
It can therefore be assumed that in the currently existing "loose" constellations, liability of a guide can only be assumed in absolute exceptions. In addition, it must be taken into account that in the context of voluntary work that is free of charge for the club member, a significant reduction in the proportion of damages to be borne is likely to be applicable, analogous to liability for courtesy, even if liability exists in principle (Art. 43 para. 1 OR, see BK OR-Kessler, Art. 43 N 15 with reference to literature and case law). If there are additional grounds for reduction, such as gross negligence on the part of the participant (e.g. completely inadequate equipment, grossly negligent behavior in the terrain) or if the person liable for compensation would be placed in an emergency situation as a result, these grounds for reduction must also be taken into account (Art. 44 para. 1 and 2 OR, see BK OR-Kessler, Art. 44 N 7 ff. with reference to literature and case law on various possible grounds for reduction).
C. Liability in the context of club and group activities
Many trail runners do not belong to a club and pursue their activities in simple, informal groups. However, ambitious runners very often practice their sport in sub-sections of athletics associations or running clubs dedicated to trail running. There are also specific trail running clubs (e.g. the trail-maniacs club). These clubs usually have a more or less dense training programme with various activities, including specific training weeks in the mountains or the organization of competitions.
This also raises questions in terms of liability law. If, for example, a liability-relevant accident occurs during an activity organized by the club (training, competition, off-road tour), the question arises as to whether and on what basis the club can be held liable by the participant. In addition, under certain circumstances, someone can also take over the leadership of groups without further contractual obligations, who may then be held liable as a vicarious liability or as a de facto leader.
1. liability of the association
The association as a legal entity (Art. 52 para. 1 and 2 ZGB) can be held liable either on the basis of a contractual relationship (Art. 97 OR) or from tort (principal's liability, Art. 55 OR).
If a club makes a commitment to a club member or third party to carry out a training or race, this creates a contractual relationship. This can be either explicit (as is usual for (semi-)professional racing events, for example) or implied (Art. 1 para. 2 OR, for example by simply appearing at the starting line of the training session). The contractual basis is assumed to be an order in accordance with Art. 394 ff. CO, whereby it should be noted that remuneration is not customary in the context of club activities or that club activities are usually compensated with a flat-rate annual membership fee.
The person who effectively manages or organizes the activity acts either as an organ/board member on behalf of the association (Art. 69 para. 1 ZGB) or as an auxiliary person called in. Auxiliary persons can either act as employees of the association (such as employed and paid trainers), but much more frequently they are volunteers who are usually also members of the association themselves. The basis for liability here is Art. 97 OR and Art. 101 OR (for auxiliary persons).
Alternatively, the association can also be held liable on the basis of (non-contractual) principal's liability (Art. 55 CO) for the actions of its bodies and auxiliary persons. This is particularly relevant in constellations in which there is no contractual relationship between the association and the injured party. For example, injured spectators at an event who, in the absence of a contractual relationship with the organizing association, can only assert claims on this basis.
2. personal liability of the association member
In principle, an association is only liable for its liabilities with its assets, unless the articles of association stipulate otherwise (Art. 75a ZGB). Members should therefore almost never be liable for liability claims against the association. The association's assets are generally relatively limited, with the exception of very large sports clubs, and often consist exclusively of membership fees and any income from events organized by the association, which together serve to finance ongoing activities. In addition, small clubs in particular do not have their own liability insurance policy to cover any liability risks. In most cases, the liability substrate must therefore be considered manageable and far from sufficient to settle a complex bodily injury or major property damage claim. From the point of view of the injured party, it is therefore often much more attractive to take action against a natural person (who may have personal liability insurance).
The member of the association carrying out/leading the activity on behalf of the association is not personally and contractually bound. They are merely acting on behalf of the association. A contractual basis and therefore liability in accordance with Art. 97 OR is therefore out of the question. This leaves only tort liability as the basis for liability in accordance with Art. 41 OR.
D. Liability towards third parties, plant owner liability and contractual liability of mountain railroads
In principle, liability towards third parties is also conceivable. For example, if trail runners collide with hikers due to inappropriate speed or stones are kicked loose that hit other mountain sports enthusiasts. In addition, trails used by trail runners are often works within the meaning of Art. 58 para. 1 OR. If these are defective and damage occurs as a result, the question arises as to whether claims against the owner of the work exist and can be enforced (see Hungerbühler, para. 43 et seq.). Especially since many mountain railroads explicitly advertise to trail runners and provide and maintain hiking trails for this purpose, it would also be at least debatable (if a transport contract or other contractual relationship existed) whether mountain railway operators are contractually liable for accidents during the activities they advertise. This is in analogous application of the case law on the obligations of ski resorts to ensure the safety of ski slopes (BGE 115 IV 189).
For further explanations on liability towards third parties, plant owner liability and the liability of mountain railway companies arising from transport contracts, including the corresponding casuistry, please refer to the explanations in the article on hiking(Vuille, para. 33 ff. and 37 ff.; see also Elsener/Wälchli, para. 36 ff.), which are also applicable to constellations involving trail runners.
E. The right to one's own image
In principle, all photos are protected by copyright. On the one hand, the protection of the author of the photo is relevant and, on the other hand, the protection of the person(s) who can be seen in the photo. Since every person has a right to their own image as part of their right of personality (Art. 28 ZGB), every person may in principle decide for themselves whether they wish to be photographed and for what purposes the photographs may be used. The unauthorized photography or dissemination of images is therefore relevant in the area of data protection law and can also be relevant under criminal law (possibly also through a violation of Art. 179quater StGB). In order to be able to take photos and videos at trail running competitions, the organizers obtain a declaration of consent from the trail runners at the time of registration to photograph and film them and to use the photos and videos on the Internet, on social media and, if necessary, for advertising purposes (see, for example, Art. 52 to 54 of the regulations of the Sierre-Zinal race). As a rule, clubs also obtain a corresponding declaration of consent from their members or should at least do so.
III Criminal law
A. General information
Anyone who engages in mountain sports exposes themselves to danger and trail runners can also fall, be surprised by bad weather, get caught in avalanches or be hit by falling rocks or ice (cf. Christen, p. 268). The basis for the assessment of any criminal consequences of mountain accidents can be found in the general section of this commentary (see Müller, Bergsportkommentar, para. 1 and para. 52 ff. and Müller/Sidiropoulos, para. 1 ff.). If an accident occurs while trail running, it can generally be assumed when examining any criminal consequences that this is due to negligent and not intentional behavior. In particular, it must be examined whether a person involved in the accident is guilty of negligent homicide (Art. 117 StBG), negligent bodily injury (Art. 125 StBG) or failure to provide emergency assistance (Art. 128 StGB) and whether the accident is therefore criminally relevant(Christen, p. 270).
Possible criminal conduct on the part of a professional or volunteer trail running tour operator or trail race organizer must also be examined. Competitions are very common in trail running, as trail runners have several trail runs to choose from almost every weekend. For the aspects of competitions that are relevant under criminal law, please refer to the explanations in the article "Competition in the mountains", which deals in detail with the criminal liability of competition organizers in the event of accidents (see Toneatti, para. 86 ff.).
B. Negligent bodily injury and involuntary manslaughter
1. negligence
If a trail runner negligently injures another person, possibly fatally, this may constitute negligent homicide pursuant to Art. 117 StGB or negligent bodily injury pursuant to Art. 125 StGB can be fulfilled. "A person commits a felony or misdemeanor negligently if he fails to consider the consequences of his conduct due to carelessness contrary to his duty or fails to take them into account. Carelessness is contrary to duty if the offender fails to observe the caution to which he is obliged under the circumstances and according to his personal circumstances" (Art. 12 para. 3 StGB). Negligent homicide or negligent bodily injury can therefore be committed if a person breaches a duty of care and thereby causes bodily injury, damage to health or the death of another person. In trail running, for example, it is conceivable that a trail runner could trigger a rockfall, a loose rock could hit a companion and injure them, possibly even fatally, or the rockfall could lead to a potentially fatal accident.
2. duties of care
If a trail runner breaches his or her duty of care and causes an accident that he or she could have foreseen and avoided, this constitutes negligence. The scope of the duty of care depends on the role of the trail runner, who may be the leader of a group. The legal relationship between the parties involved in the accident is therefore decisive when assessing the legal consequences of an accident. The duty of care of a professional guide, i.e. a professional trail running guide, with a paying guest or a paying group goes the furthest, the duty of care of a volunteer trail running guide and a de facto guide goes somewhat less far, and the duty of care of a member of a risk group goes the least far (see Christen, p. 269 f. and para. 22 ff. in this article).
3. liability arising from the position of guarantor and joint risk
A person is deemed to be a guarantor if they were legally obliged to avert a specific event if possible (see Praxiskommentar StGB-Trechsel/Fateh-Moghadam, Art. 11 N 7). Professional trail running guides have a guarantor position due to their contractual relationship with the participants in their trail running offers, which arises from Art. 11 para. 2 lit. b StGB. The position of guarantor of a volunteer trail running guide can also arise from the recognition of the position of guarantor of a de facto leader of a group. However, the position of guarantor of a volunteer trail running guide or a member of a trail running group can only be affirmed if, under the specific circumstances, the person actually has more experience than the other group members, gives instructions that are followed by the other group members and they consciously or unconsciously rely on the person's experience and knowledge. Only if a person explicitly or implicitly assumes (leadership) responsibility can a role as de facto leader be assumed. In addition, a duty of care can arise from a community of danger (see Art. 11 para. 2 lit. c StGB) can arise if several people get involved in a danger because they trust that they will help each other (see Praxiskommentar StGB-Trechsel/Fateh-Moghadam, Art. 11 N 11 ff.). However, if several equally experienced trail runners come together with the sole purpose of practising trail running together and without one person taking on a leadership role, a community of danger exists without de facto leadership (for comprehensive explanations on de facto leadership and communities of danger, see KOCH, para. 23 ff.).
As already stated, criminal liability depends on whether the professional or volunteer trail running guide or a member of a trail running group has breached their duty of care. The scope of the duties of care to be fulfilled depends on the respective role that a person has due to any existing contractual relationships, legal bases or the explicit or implied assumption of a leadership role.
C. Damage to property
Damage to property is defined as damaging, destroying or rendering unusable another person's property, which is prohibited under criminal law. If a trail runner deliberately damages the property of others, this can therefore constitute damage to property in accordance with Art. 144 StGB. This may be the case, for example, if trail runners damage fences, gates or other structures or if they damage animals or plants belonging to a third party.
IV Social insurance law: trail running is not a risk
As explained in the article "Introduction and principles" of this commentary(Müller, Bergsportkommentar, para. 65), the UVG provides for reductions or refusals of benefits if the damage incurred was culpably caused or if an extraordinary danger or risk was taken (Art. 37 and 39 UVG). For an explanation of the concepts of gross negligence and the distinction between relative and absolute risks, please refer to the explanations provided there.
At present, Suva does not classify any type of trail running as an absolute risk, nor are there any decisions that describe a relative risk in connection with trail running. In view of the fact that various 4000-metre peaks in Switzerland (including the Matterhorn) are already being climbed at ever greater speeds with less and less equipment (without rope, without safety equipment, without ice axe, without crampons or only with light crampons, solo or without an accompanying person and only in (sometimes somewhat sturdier trail running shoes), it can certainly be questioned whether the risk taken can still be controlled at all for such types of ascent. If one considers the previous case law on risks, then from the point of view of case law, an ascent of a 4,000-metre peak in sneakers, whereby such peaks are normally climbed with the usual mountaineering equipment, is probably at least a relative risk, even in good conditions.